CHIEF EXECUTIVE, DEPT OF CORRECTIONS v HAKES [2019] NZHC 2440

CHIEF EXECUTIVE, DEPT OF CORRECTIONS v HAKES [2019] NZHC 2440 [26 September 2019]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2018-412-000038[2019] NZHC 2440THE CHIEF EXECUTIVEDEPARTMENT OF CORRECTIONSvZAC HAKESHearing: 26 September 2019Appearances: R P Bates for the CrownS A Saunderson-Warner for Mr HakesJudgment: 26 September 2019ORAL JUDGMENT OF NATION J[1] Mr Hakes, you are aged 22. On 12 December 2018, you ended a sentence ofimprisonment for two years and two months on charges of sexual connection with ayoung person 12 to 16 and common assault. Corrections filed an application for anextended supervision order (ESO) and also an application for an interim supervisionorder with intensive monitoring. I made such an interim order on 12 December 2018and you have been subject to that order since that time.[2] There was to have been a hearing of Corrections' application for thesubstantive ESO today, on 26 September 2019. Corrections' original application wassupported by detailed reports from a Corrections Department psychologist, MsCristina Fon. Your counsel had obtained a report from Mr Craig Prince. It wasanticipated that both psychologists would have to be available for cross examinationon their reports.[3] Just prior to the scheduled hearing, yesterday I was told that agreement hadbeen reached as to the making of an ESO and the particular terms of that order. I havebeen advised by your counsel that it has been confirmed such an agreement has beenreached. The important features of what has been agreed to are that you are going tobe subject to an ESO for five years and you are going to be subject to intensivemonitoring for a further 10 months. I am sure those terms have been discussed withyou carefully and you understand them.[4] It has also been accepted by your counsel that all the essential requirementsand elements that have to be established for the making of an ESO have been met.[5] I do record that you are an eligible offender for the making of an ESO becauseof your convictions from 2016 for two offences of sexual connection with a youngperson and the charge of assault. You also had prior convictions for offences of aviolent nature, namely three charges of male assaults female. On that, you weresentenced to six months' intensive supervision on 20 May 2014. You also have aconviction on a charge of threatening to kill or do grievous bodily harm on which youwere sentenced on 22 July 2014 to 80 hours' community work.[6] Ms Fon's report, which was submitted in support of your original application,indicated to her there was a high risk of your committing a further relevant sexualoffence in the community within the next 10 years. The report indicated that you hadpresented with a high level of sexual preoccupation and engagement in sexuallyexploitive behaviour from the age of 13.[7] Your previous involvement in treatment programmes did little to reduce therisk of further relevant sexual offending.[8] Between March 2015 and October 2015, while serving a sentence of intensivesupervision, you had attended 23 individual therapy sessions but the report indicatedthat your engagement with the programme was limited. Over that time, it wasconsidered you had displayed limited capacity to regulate your behaviour and youcontinued to deny there was any problem with sexualised behaviour.[9] While you were serving your prison sentence, you had to be discharged fromthe Kia Marama Special Treatment Programme in June 2017.[10] Ms Fon addressed relevant risks in terms of the matters referred to in s 107IAAParole Act 2002. In summary, the report indicated that you displayed an intense driveto commit relevant sexual offences and had a high level of sexual preoccupationassociated with young women under the age of consent. You were assessed by her ashaving limited capacity to regulate your behaviour. You had not acknowledged yourprior sexual behaviour with the two victims of the offending for which you received aprison sentence as being harmful or inappropriate. You did not appear to appreciatethe impact your behaviour could have on your victims.[11] Mr Prince provided a detailed report for the Court in May. Mr Princeconsidered there was little evidence to support the notion that you had a deviant sexualinterest or preference for underaged females but acknowledged that you had engagedin inappropriate and coerced sexual behaviour with girls when younger. Mr Princenoted that a number of examples of inappropriate and concerning sexualised behaviourwere associated with psychological immaturity. Mr Prince was concerned at the wayan ESO of 10 years' duration could be a crushing blow to you. He assessed you asbeing a young man who realised the error of your ways and he said there wasinformation which suggested that you were making progress as a result of engagementwith a clinical psychologist on a one-to-one basis and considered you were appearingto become more mature. He was of the opinion that you did not then fulfil all therelevant criteria under the Parole Act with regard to the risk of reoffending in a relevantmanner.[12] Mr Prince's report was considered by Ms Fon and was the subject of a furtherdetailed report from her of 9 September 2019. In that report, Ms Fon providedinformation as to a number of instances in which you had breached your releaseconditions and interim ESO conditions in the period after your release from prison on12 December 2018. There were instances of your threatening violence to staff at thePACT residence where you were living and accessing pornography on a cell phone.Associated with that, you admitted telling your probation officer that you wereaddicted to pornography and could not live without it. After the terms on your interimESO had been changed to ban you from having an internet capable device and fromaccessing the internet, you obtained the use of a fellow resident's phone to gain accessto the internet. As a result, you were sentenced to three months' imprisonment. Afterthat, you admitted accessing pornography sites depicting deviant sexual behaviour,including "animal porn". The report said that you were continuing to experiencearousal with females falling within the 12 to 16 year old age bracket.[13] Ms Fon also noted some progress had been made for you through yourrelationship with a treating psychologist Mr Greer but, at the same time you appearedto be making that progress, you were arrested for breach of conditions in accessing theinternet.[14] In reviewing her assessment of the risk of you committing a further relevantsexual offence in the community, Ms Fon noted that, since your earlier sentence hadbeen completed, you had been released from prison, recalled for breach of conditions,and then re-released to the PACT residence. You had made use of individualpsychological treatment, had attempted to develop an age-appropriate relationship andhad developed a safety plan. She noted however that you continued to demonstrateemotional dysregulation, impulsivity and sexual preoccupation.[15] Ms Fon again addressed risk issues relevant to s 107IAA. She identifiedfactors which, to her, meant there was still a significant risk of relevant sexualoffending. It remained her assessment that you were at a high risk of committingrelevant sexual offending. It was her view that risk would remain until you hadimproved your ability to regulate your behaviour and to develop only age-appropriaterelationships. Ms Fon accepted that the term of any ESO should not be potentiallycrushing and that you needed the opportunity to explore and develop age-appropriaterelationships but considered that you needed to do that with the support available froman appropriate therapeutic relationship. That support, she suggested, would beavailable only with the making of an ESO.[16] Mr Hakes, you have obviously talked carefully with your counsel about all theevidence that was before me in these reports and you accept that it is appropriate foran ESO to be made for a further term of five years, with all the terms that are set outin the orders that have been prepared.[17] In summary, what all this means is that I am satisfied, on all the informationbefore me, that it is appropriate for you to have the support and assistance that will beavailable to you through the making of an ESO. The making of that order should alsoreduce the risk that exists for further relevant sexual offending. I am thus satisfied itis appropriate to make an ESO on the terms agreed to between Corrections andyourself.[18] I want to say to you that it is now over to you to see whether you can continueto take advantage of the assistance which will be available to you. You need to workhard with those who are trying to help you regulate your behaviour, emotions andsexual interests to further reduce the risk of you committing further sexual offences.You need to do this and make further progress in that way to avoid a future extensionafter five years of the ESO. I hope you can do that, but work hard at it.[19] I make an extended supervision order in terms of the draft order that has beenpresented to me with the special standard conditions and interim special conditionsthat are referred to in those draft orders.Solicitors:RPB Law, DunedinS A Saunderson-Warner, Barrister, Dunedin.